The Ten Facts You Need to Know About <I>Heller.</I>

Friday, February 8, 2008

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On November 20, the Supreme Court agreed to hear one of
the most important Second Amendment cases in history. The case is a
challenge to Washington, D.C. laws that forbid possession of
handguns not registered before 1977; forbid possessing any firearm
at home if not unloaded and disassembled or secured by a trigger
lock; and forbid carrying a handgun, openly or concealed, without a
license-even from room to room in the home.

Briefs by the parties and "friends of the
court"-including NRA-will (click Here to read NRA's brief) be filed throughout
the winter and spring, and the court will hear arguments in March.
Experts anticipate a June decision-and the wisest of those experts
know not to make any firm predictions.

The outcome may be uncertain, but the media spin isn't.
To help you follow the action as it unfolds, here are the top 10
things you need to know about the case.

1. How the case got here. Shelly Parker and five other
Washington, D.C. residents sued to overturn the city's laws that
prevent them from using guns in self-defense at home. The U.S.
District Court for the District of Columbia dismissed the suit,
rejecting what it called "the notion that there is an individual
right to bear arms separate and apart from service in the Militia."
Because there's no right, the court said, the plaintiffs had no
standing to sue.

The citizens appealed and got a friendlier reception in the U.S.
Court of Appeals for the D.C. Circuit. There, a three-judge panel
held that the Second Amendment protects an individual right outside
of militia service and that the D.C. laws violate that right.

At the same time, the D.C. Circuit found that only one
plaintiff-Dick Heller-could sue, because D.C. had actually denied
his application to register a handgun. The full circuit court
denied D.C.'s request to review the panel ruling.

The District has now appealed to the Supreme Court-against the
wishes of anti-gun groups who fear that a pro-individual rights
ruling will threaten gun laws nationwide. Because D.C. filed the
appeal, and all of the plaintiffs but Heller were dismissed, the
case is now called District of Columbia v. Heller
.

2. The Supreme Court's decision in Heller may be limited. The
Supreme Court has said that its review of the Court of Appeals
decision in Parker will be "limited to the following question:
Whether Washington, D.C.'s bans [on handguns, on having guns in
operable condition in the home and on carrying guns within the
home] violate the Second Amendment rights of individuals who are
not affiliated with any state-regulated militia, but who wish to
keep handguns and other firearms for private use in their
homes."

The case doesn't deal with carrying a gun away from home,
doesn't seek to overturn D.C.'s firearm registration law and
doesn't seek to overturn other laws in D.C. or anywhere else.

3. The individual rights interpretation of the Second Amendment
goes back to our nation's founding. The District's theory-that the
Second Amendment protects a right of individuals to possess
firearms only for active duty in a militia-did not exist when the
amendment was written, approved by Congress and ratified by the
states. Neither did the theory that it protects a so-called
"state's right" to have a militia.

Attorney and preeminent Second Amendment historian Stephen
Halbrook has found no evidence that anyone associated with
drafting, debating and ratifying the Second Amendment ever
considered it anything other than a protection of a preexisting
individual right to keep and bear arms. As Halbrook has also noted,
that view prevailed into the 19th century.

In his 1829 commentaries on the Constitution, Federalist William
Rawle wrote that if Congress or a state legislature tried to disarm
the people "in any blind pursuit of inordinate power," the Second
Amendment "may be appealed to as a restraint on both."

And in 1833, Supreme Court Justice Joseph Story declared "The
right of the citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of the republic."

By contrast, D.C.'s "militia duty" theory was not invented until
1905, in the Kansas Supreme Court's decision in City of
Salina v. Blaksley, while the "state's right" theory
arose in 1943, in the Third Circuit U.S. Court of Appeals decision
in U.S. v. Tot.

4. In U.S. v. Miller (1939), the Supreme Court
did not, as the District of Columbia claims, consider the Second
Amendment to protect only a right to be armed while serving in a
militia. And, contrary to what some gun control supporters have
claimed, the Court did not consider the amendment to protect a
so-called "state's right" to maintain a militia.

Had the court held either of those views, it would have said the
Miller defendants had no basis for a Second Amendment claim,
because they were individuals with no apparent connection to a
militia, and they certainly were not states.

But the court never mentioned it. To the contrary, as the Court
of Appeals noted in Parker, the Supreme Court in Miller said that
the militia consists of "civilians primarily, soldiers on occasion
. . . bearing arms supplied by themselves." (Emphasis
added.)

5. U.S. v. Miller contradicts the District's claim that handguns
are not "Arms" protected by the Second Amendment. We can't respond
much more eloquently than the D.C. Circuit did in
Parker:

"[T]he District's claim runs afoul of Miller's discussion of
'Arms.' The Miller court concluded that the defendants, who did not
appear in the Supreme Court, provided no showing that
short-barreled (or sawed-off) shotguns-banned by federal
statute-bore 'some reasonable relationship to the preservation or
efficiency of a well regulated militia.' However, the Court also
observed that militiamen were expected to bring their private arms
with them when called up for service. Those weapons would be 'of
the kind in common use at the time.' There can be no question that
most handguns (those in common use) fit that description then and
now."

6. The Second Amendment does not create a right out of thin air.
It protects a right that existed before the Constitution was
written. Opponents of the individual right to arms-and many who
parrot them in the media-talk in terms of whether the amendment
creates, grants, establishes or confers a right. If they
acknowledged that the amendment protects a right that existed
before the government did, they would have to admit that the right
doesn't belong to government, or to those on duty in a government's
militia. Rather, the right belongs to private individuals.

The text of the Second Amendment confirms this. It does not say,
"the people shall have a right to keep and bear arms." It says,
"the right of the people to keep and bear Arms shall not be
infringed." (Emphasis added.) The Supreme Court confirmed this
point in U.S. v. Cruikshank (1876), declaring,
"This is not a right granted by the Constitution. Neither is it in
any manner dependent upon that instrument for its existence."

7. The Second Amendment protects the right to keep arms, as well
as the right to bear arms. One of the most incredible claims being
thrown at the Second Amendment today is the Brady Campaign's brand
new idea, adopted by the District Court in its Parker decision,
that "the right to keep and bear arms" means only "the right to
bear arms" when on active duty in a militia. Another equally
incredible claim, by anti-gun academic Garry Wills, is that "keep"
means "keep up," as in "maintain a militia."

In Parker, the Court of Appeals rejected these ideas. As that
court said, "Such outlandish views are likely advanced because the
plain meaning of 'keep' strikes a mortal blow to the collective
right theory . . . We think 'keep' is a straightforward term that
implies ownership or possession of a functioning weapon by an
individual for private use." Of course, to "keep" means "at home,"
precisely what is at issue in Heller.

8. Washington, D.C.'s gun and self-defense bans don't work-and
few expected them to work. D.C.'s murder rate had been declining
before passage of the handgun ban in 1976. But between 1976 and
1991, it rose 200 percent, while the U.S. murder rate rose only
nine percent. And just a week after getting the Supreme Court to
take up the Heller case, D.C. Mayor Adrian Fenty announced the city
will spend $1.8 million on new rooftop sensors, to detect shots
fired from supposedly banned guns.

Even 30 years ago, few of D.C.'s politicians-even supporters of
the bans-put much hope in the laws' effectiveness. Then-Councilman
Jerry Moore voted for the ban bill, but admitted he had "no
illusions about this law-it won't take guns off the streets."

Police confirmed those suspicions. D.C.'s police chief at the
time admitted that less than 0.5 percent of guns seized by police
in 1975 were registered. Front-line officers were even more candid;
one veteran detective told a reporter, "You're not controlling
guns, you're controlling people ... We're not stopping these bums
killing each other, us, or committing armed robberies."

9. Even a decision upholding the D.C. laws wouldn't be the end
of the story, but the start of new battles in Congress and the
state legislatures. America's political process has dealt with
mistaken court decisions in the past. In the infamous Dred Scott
decision of 1857, the Supreme Court ruled that blacks born in the
United States couldn't be citizens-even though several states had
always treated them as such. It took the Fourteenth Amendment,
followed by decades of work in the courts, the Congress and the
state legislatures, to erase the Dred Scott ruling.

While a decision in favor of D.C. would encourage anti-gun
lawmakers, other politicians would still have to listen to their
constituents-and the political fight for gun ownership would only
become more intense, with a greater need for grassroots involvement
than ever before. When it comes to defending the right to keep and
bear arms, NRA has no plans to leave the field.

10. Because this is such a limited case, even a victory won't
mean that all gun control laws can be overturned or challenged. A
Supreme Court ruling that there is an individual right to arms, and
that these three D.C. laws violate that right, would be a milestone
for freedom in America. But it wouldn't be the end of the gun
control debate. Because the D.C. laws are so extreme, even a strong
opinion in this case would establish a floor, not a ceiling, for
gun owners' rights.

Other civil rights struggles suggest what could lie ahead. The
Supreme Court ruled in 1954 that school desegregation is
unconstitutional, but it took over a decade of legal and political
battles to enforce that ruling-and litigation on the issue
continues today. Likewise, Prof. William Van Alstyne points out
that the First Amendment's free speech guarantee, which many take
for granted today, was barely recognized at all for America's first
120 years.

In any event, we'll do well to remember the words of Vince
Lombardi: "I firmly believe that any man's finest hour, the
greatest fulfillment of all that he holds dear, is that moment when
he has worked his heart out in a good cause and lies exhausted on
the field of battle-victorious."

A Supreme Court ruling that there is an individual right, and
that these three D.C. laws violate that right, would be a milestone
for freedom in America.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.